28 May 2004

I grew up in Lexington, Kentucky but a twist of fate has landed me in Virginia to practice law. Most of the time I am content with my lot in life but every so often something happens which makes my heart yearn for my Old Kentucky Home, real basketball, the best bourbon, and the fastest horses.

This time it was watching CourTv. Yesterday they were showing a murder trial in Richmond, Kentucky (about 45 south of where I grew up). As I watched the closing arguments, the thing which hit home the most to me was how right the accents sounded. And the reasoning in the arguments (at least the Defense's) was stuff that just struck me as thoroughly Kentuckian. Homesickness hit like a wave.

When a "reliable informant" (snitch) or an officer sends an "unwitting informant" (sucker) into a building to buy drugs and UI comes out of the building with drugs that is sufficient for probable cause.

It is the prosecutor's responsibility to prove all elements of a crime beyond a reasonable doubt. Nevertheless, when the prosecutor enters a driving record to prove a prior conviction in DUI cases and the elements required in order to make that prior conviction a valid prerequisite offense are missing the prosecution does not have to prove the validity of this element. The burden shifts to the Defendant who must prove that this element of the crime is invalid in order to prove his innocence.

A rather unfocused article written by a NY lawyer for a Brit paper on the American jury system. At the end, out of the blue, it seems to conclude that lawyers should not sit on juries because they might hold the prosecution to an impossible standard.

Because, goodness knows, we wouldn't want to make prison depressing or uncomfortable. They must be awful enlightened in Iowa; in Virginia I don't worry about jail visitation conditions - I usually worry about things like whether my client is getting necessary meds or if he's going to suffer heat stroke because his cell block is on top of a sun-baked, tar covered roof and I don't know if he's even got a fan on those nice 95 degree days.

25 May 2004

Anyone who has gone to any kind of criminal law seminar in the last couple years has heard a vocal minority expounding upon how US criminal law must be seen through the lens of international treaties. I, for one, am dubious.

24 May 2004

Another speaker at the Seminar was Dr. Fredrick Whitehurst, recently blogged about here, who spoke about errors being made by forensic laboratories. He listed a great number of State and federal facilities which had been caught in error (error usually meaning faked or false test results and/or false testimony by experts). I took down the ones he put up news articles for; there were others which he claimed but I do not include because the papers on the viewscreen looked like they were some sort of internet mail-list. The list included:

He also discussed the FBI's long-standing claim that it could identify bullets by their metallic composition and how that was eventually debunked.

Lest ye think the Virginia lab came through unscathed I must point out there was a discussion of the Earl Washington case (although not first brought up by the speaker). I don't know all the facts in the Washington case but apparently DNA tests should have excluded him because he had the wrong blood type. Later, when the forensic lab retested, it was certified that two people's DNA were in the sample (neither Washington) but even this was called into doubt when a California lab tested and only found one.

23 May 2004

Hmmm . . . 263 gradtuates even with the 25% washout rate. Not sure that speaks well of how many people they are taking in each year (part of Centre's strength has always been the small numbers). I wonder if the typical 20% of graduates are off to law school again this year?

Although she did finish before I got there she put together a very useful outline as to how to handle a case:

Ten Things That Every Criminal Defense Lawyer Should Do
(So as not to suck)
(plus a few extras, just for good measure)
By Esther J. Windmueller

1. Read the file on every show cause.a) See if time has expired.
b) See what underlying facts are
c) Number of previous show causes and results
d) Judge notes about what will happen the next time
e) Read for cases too, witness subpoenas are in there.....
2. For new cases, go back and read the Code again, (also check jury instructions)
a) The defenses are in there.
Examples
i) disorderly
ii) false information
iii) suspended operators license
b) read the headnotes, but do NOT practice from them, (most embarrassing moments result). You must read the case. Think about who is writing the headnotes......
c) Check charging document - is it the right code section (embezzle v. grand larceny v. false pretenses, etc). Is there a statute of limitations problem (misdemeanor)? Is it the right date?

3. Get involved in the snitching (even though very distasteful)

a) Note what date and time your client agrees to snitch.
b) Keep track of number of meetings, other activities and targets
c) Follow up, send letters to prosecutor
d) Never push snitching and always let client know ramifications

5. Look at all exhibits/physical evidence, (in court and out).
a) send wrong one to the bench (win your case)
b) stuff that can help you
c) Get labs early, need to get stuff tested. Testing from state lab:

Va. Code § 9.1-121. Rights of accused person or his attorney to results of investigation or to investigation. - Upon the request of any person accused of a crime or upon the request of an accused person's attorney, the Division of Forensic Science or the Division of Consolidated Laboratory Services shall furnish to the accused or his attorney the results of any investigation which has been conducted by it and which is related in any way to a crime for which the person is accused. In any case in which an attorney of record for a person accused of violation of any criminal law of the Commonwealth, or the accused, may desire a scientific investigation, he shall, by motion filed before the court in which the charge is pending, certify that in good faith he believes that a scientific investigation may be relevant to the criminal charge. The motion shall be heard ex parte as soon as practicable, and the court shall, after a hearing upon the motion and being satisfied as to the correctness of the certification, order that the same be performed by the Division of Forensic Science or the Division of Consolidated Laboratory Services and shall prescribe in its order the method of custody, transfer, and return of evidence submitted for scientific investigation. Upon the request of the attorney for the Commonwealth of the jurisdiction in which the charge is pending, he shall be furnished the results of the scientific investigation.

d) Get Breathalyzer info from Dept of Forensic Sciences

6. Do Guidelines yourself early, (which means get the record, early - bond motion perhaps). Available from Virginia Sentencing Commission, helpful CLEs.
a) know a good deal when you see one.
b) Know which charges to get dropped or what to turn your charge into.
c) Know when it would be very hazardous to get a Presentence Report (juvenile crime of violence, for instance)
d) Know your prosecutor; can he/she do the guidelines correctly?
7. Really review Pre-sentence reports.a) In presentence reports, probation officers often just look to computer info. Pull the priors, often different, ck for status offenses for juveniles, etc., no ol for sols, etc.
b) Do the math.
c) Gain credibility with the court (but often good to check with probation officer first)
d) Call the sentencing commission hotline when any doubt. 804 225-4398.
e) Federal court. Priors can kill, facts can show overstated seriousness....

8. Go to the crime scene.a) Allows you to ask the right questions at prelim.
b) Gain credibility with officers, prosecutors and judges and your client.
c) Can show you the way to a defense (trespassing sign example).
9. Check on Commonwealth's witness background yourselfa) put name into court computer. Can now do it online, www.courts.va.us.
b) can tell you things other than convictions when look at hard copy.

10. Jury Lista) Pull the master list. Check the addresses. Section 8.01-345
b) Figure out who the ideal juror is. Educated? Parent? Young person?....
11. Return phone calls/lettersa) They will keep calling until you do anyway.
b) They will never hire you again (or the first time) if you do not.
c) They may have very important information for you this time.
12. Visit within 24/48 hours. Enormous goodwill, may save client's job. Some cases require action right up front (like telling client not to talk on the telephone at the jail!!)

13. File Discovery unless you have decided for a particular reason not to.a) Get order signed
b) Tickle yourself to check to see if it has been responded to.

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It's a good checklist which I commend to you all. If anybody out there ever needs hardcore representation in Richmond (and you don't want to hire me) you could do far worse than to go retain Esther.

The way it was explained to me when I first started, if you practice indigent defense criminal law and want to make enough money to pay your bills you need to take mostly drug, bad check, larceny cases, and their ilk. They are usually fairly simple charges wherein you can do a competent job and not go broke. The cases which need to be avoided are violent assault charges, robberies, minor felonies with mandatory prison time (i.e. exile), &cetera - at least if it is a not guilty plea. The time in prepping a good defense and trying the case will most often make it a money loser. Taking a jury trial when there are less than 2 or 3 felonies is also a money loser. Finally, you should never, ever take a non-capital murder trial unless you have a large war chest so that you can absorb the massive losses that occur when you get past the cap of $1096.

I must say that I've never turned down a court case because I thought it would be a money loser. And there are plenty of prosecutors out there who can testify that I've taken a number of juries to trial wherein there was only one felony charge ($395) and even only one misdemeanor ($148). The only thing I think I would turn down because of monetary concerns would be a non-capital murder. I just don't have the money to block aside adequate time; I couldn't take the loss.

The fee caps have two major effects. One one hand, they mean that those who do court appointed work must churn cases at a quick pace. If you don't churn enough cases you end up in a situation where you cannot even afford a secretary and have to pick and choose which bills you pay at the end of the month. On the other hand, lawyers who can do so quite often stop taking court appointed cases from the Commonwealth. I know several lawyers who fall into either category.

I also know that I have often considered how I might be able to grow my practice and all of them involve leaving behind court appointments from Virginia. I've often thought about how I could grow (or more accurately change) my practice into some area such as wills, business law, real estate, &cetera. When I started taking federal appointments and realized how very much more they paid I had thoughts of switching over completely. This wasn't because I preferred federal practice; in fact, I very much enjoy my State practice - I just had visions of having enough money to at least get a secretary. Still, after talking to some of the old salts I realized that federal appointments are not constant (particularly since the public defender office opened). So the majority of my work remains court-appointed from the Commonwealth. It is, for me, kind of a "don't throw me into that briar patch" situation but if something came along which paid decent . . .

Perhaps most helpful to defense lawyers, though, are statements that the complaint attributes to Mr. Stewart in which he criticized the analysis of the ink on the document. According to the agent, before he testified Mr. Stewart privately told one employee at the Secret Service's Forensic Services Division that the analysis was improperly completed; after the trial he told an agent of the Federal Bureau of Investigation that if anyone were to accuse him of perjury, it could be related to "covering for" another employee.

You have to respect the fact that the prosecutor brought charges. Still, the article makes it seem as though the prosecution knew during the trial:

Mr. Stewart also testified that he knew that two employees who worked under him in ink analysis were working on a book that would contain a chapter on a certain type of ink analysis. In fact, according to prosecutors, he did not know about the book at the time that he testified and said so — after he appeared on the witness stand.

The SSG who deserted his unit while it was in Iraq only got a year in jail. He is still claiming that this betrayal arose from his conscience - a convenient assertion after you have abandoned your fellow soldiers.

To frame this a little, here is some information about this malfunction's father:

21 May 2004

Sexual offenders are bad and deserve very hefty punishments. The thought of them getting out is disturbing.

That said, the absolute fiction that subjecting them twice to imprisonment for the same crime - under the claim that it's okay because the second imprisonment is merely civil - is not a violation of double jeopardy is an extremely dangerous and disturbing precedent. Remember back in the days of yore when we used to take the Soviets to task for imprisoning people as "mental patients?"

Frederic Whitehurst told jurors Wednesday that FBI forensic scientist Steven Burmeister, whom he trained, had told two lies: that ammonium nitrate crystals found on bombing debris had been embedded by the force of the blast and that the crystals came from the kind of fertilizer believed used in the bombing.

. . .

The Associated Press last year reported that Burmeister himself alleged to the Justice Department's inspector general that the bombing evidence was tainted by shoddy work and contamination problems, then recanted the allegation a few months before he testified in the McVeigh trial.

20 May 2004

Jackson v. Commonwealth - Subject: Reasonable articulable suspicion arising from an anonymous tip. The Supreme Court dismantles a decision from the Virginia Court of Appeals. In so doing, it sets out the typical vague definition of reasonable articulable suspicion:

Reasonable suspicion is something "more than an 'inchoate and unparticularized suspicion or "hunch" ' of criminal activity." However, it is something less than probable cause. [T]he Supreme Court of the United States explained that "[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause."

The "totality of the circumstances," which includes "the content of information possessed by police and its degree of reliability," i.e. "quantity and quality," must be considered when determining whether reasonable suspicion exits. "[I]f a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." "[A] deficiency in one [the informant's 'veracity' or 'reliability' and his or her 'basis of knowledge'] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." The converse is likewise true. "[I]f there are strong indicia of the informant's veracity, there need not necessarily be any indicia of the informant's basis of knowledge."

The Court then goes through a primer on the Federal Supreme Court's holdings concerning anonymous tips (well worth reading) which is summed up fairly well in this paragraph:

Unlike the informant in Adams, the caller in this case was not known to the police and did not personally appear before an officer. Thus, the informant was not subjecting himself to possible arrest if the information provided to the dispatcher proved false. In other words, the informant was not placing his or her credibility at risk and could "lie with impunity." There also is no evidence that the caller had supplied information on any previous occasions. When, as in this case, there are virtually no indicia of the informant's veracity, more information is required in order "to establish the requisite quantum of suspicion than would be required if the tip were more reliable." The tip in this case, however, also lacked sufficient information to demonstrate the informant's basis of knowledge and to establish the "requisite quantum of suspicion." . . . The tip included only "easily obtained facts and conditions existing at the time of the tip" which anyone could have known, including the allegation of brandishing a firearm. It failed to include . . .predictions about the defendant's future behavior. Such details are important because they demonstrate "inside information" that would not be available to the public generally. Thus, as in J. L., "[t]he anonymous call . . . provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility." That the officers in fact found a gun when they searched Jackson does not mean that, prior to the search, they had a reasonable basis for believing that Jackson had engaged in criminal conduct. Even when an informant reports the commission of an open and obvious crime, if the tip is truly anonymous and provides no explanation for how the informant acquired the information, i.e., the informant's basis of knowledge, there remains a "layer of inquiry respecting the reliability of the informant that cannot be pursued."

The Supreme Court then goes on to reject the Court of Appeals three part analysis:

The Court of Appeals distinguished this case from J. L. and found the tip here "reliable in its assertion of illegality" because this tip unlike the "carrying a gun" tip in J.L. provided information permitting the officers reasonably to infer that it (i) came from a concerned citizen making a contemporaneous eyewitness report, (ii) involved an open and obvious crime rather than mere concealed illegality,[ ] and (iii) described criminality posing an imminent danger to the public. However, the first factual predicate is not supported by the record, the second factor does not distinguish this case from J. L., and the third element was rejected by the [Federal] Supreme Court in J. L.

The Court goes on to explain its reasoning; of note is the reasoning concerning the third factor:

Finally, with regard to the Court of Appeals' reliance on the imminent danger to the public, the Supreme Court declined to carve out a "firearm exception" to its established reliability requirements for anonymous tips. The Court stated that "an automatic firearm exception . . . would rove too far" because it "would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun." i.e.:"[A] police officer's "hunch" that the defendant was trespassing could not be raised to the level of reasonable suspicion based on an anonymous informant's assertion that the defendant was armed; the Commonwealth could not "bootstrap[] the legitimate concern for law enforcement officers' safety, which permits a protective search of a legally detained suspect, to serve as the basis for detaining the suspect."

The Court then goes on to distinguish the cases cited by the Commonwealth. Those of you who are prosecutors may want to pay special attention to this case:

[I]n Williams, 623 N.W.2d 106, the informant was not truly anonymous. There, the caller identified her location; indeed, she referred to it as "my house." The court concluded that the informant had provided "self-identifying information" and therefore put her "anonymity at risk." "Risking one's identification intimates that, more likely than not, the informant is a genuinely concerned citizen as opposed to a fallacious prankster."

If putting one's identity at risk is an important criteria almost anyone in modern times does so. We live in an era of caller ID and cellular phones which actually have GPS built into them. Any use of a phone that is not open to public use (basically only pay phones) would put the caller's anonymity at risk and therefore provide weight to an anonymous tip.

Do you do your duty or do you hide for months and make excuses to avoid going into a place where you could get killed? Well, heck, if the maximum punishment for desertion is only "prison for a year and . . . a bad conduct discharge" why should you live up to your sworn duty and fulfill that commitment to serve when called. I mean, you only volunteered - it's not like you were drafted or anything. After all, if you choose to join up because you want that extra paycheck or help with college it doesn't really mean you should actually have to go to war.

Wars have bad collateral consequences - always have, always will. If you've been in long enough to rise to the level of SSG you are a professional and know this. I respect conscientious objectors but they make their status known from the beginning; they don't take what the government gives them for years and then bail out when they are called to fulfill the promise they made to get those checks and benefits. This is not about a religious/philosophical opposition to harming one's fellow man. This is about cowardice. Either the cowardice rising from the fear of harm of self or the cowardice of not wanting to face the realities of what occurs during combat (where there are always senseless deaths).

And the most he can get for deserting his unit and abandoning his fellow soldiers is A YEAR.

Wise County is getting GPS capability. A good way of keeping track of where police vehicles are but I doubt it will help them pinpoint high crime areas - especially since they already had a pre-GPS map showing where high crime areas are located.

18 May 2004

Monday: In the morning I go to court to continue a client's driving on a suspended license case so that he can try to get his license squared away before his trial date. In the afternoon one of my clients comes to court with a letter from an attorney he has hired to replace me, so the judge allows me to withdraw from the case. Another client has his felony larceny reduced to a misdemeanor and is sentenced to 12 months with 10 months suspended. He's already served more time than that so he's happy.

Tuesday: In the morning I have a preliminary hearing set for a felony DUI. The guy hasn't been in contact with me since I saw him at the jail a couple months back (after people make bond this often happens). I think I see him in the gallery and I call his name. The guy gets up, and we start to walk toward one another. Then he turns slightly and walks past me to go speak to another attorney. So I think he must not be my client; then about 15 minutes later the other attorney walks up to me and tells me that she has been hired to represent the Defendant. When the judge comes to the bench he orders the substitution. Then I go off and do a couple bond hearings. Bond hearings are done during pre-trials (in Va. Defendants have a pretrial date on which the judge makes sure they know of what they are charged and determines whether or not they shall have a court appointed attorney). While I'm sitting there waiting for my case a Defendant is brought from the cells and just as the judge assigns another attorney he blurts out, "Can Mr. Lammers represent me?" Judge: "Do you know Mr. Lammers?" Defendant: "No, but I've heard about him." The judges goes ahead and assigns the Defendant the original attorney but I gotta admit my head swelled a little. I still don't know how the guy heard of me.

Wednesday: As I open my apartment door to leave for work one of my dogs bolts through. Since my landlords frown on letting your dog run around the parking lot all day I spend the next 45 minutes chasing Spot. So I finally catch the dog and get him put away. I head off to court and arrive 45 minutes late, but nobody even notices because it is the middle of a big traffic docket. I get my client a continuance so he can try to get his license back before he goes to trial for his driving on a suspended license charge. In the afternoon I have two appointments but only one shows.

Thursday: In the morning I go to court for a client charged with not keeping his sexual offender registration up to date. When I go talk to the Trooper involved, before I can suggest anything the Trooper tells me that my client has gotten it all squared away and he thinks this should be reduced to a misdemeanor and my client given all suspended time. The prosecutor still balks but eventually he agrees to it. In the afternoon I go off to federal court because my client has gotten a superceding (more serious) indictment because he did not agree to the prosecutor's offered plea. I sent a letter to the client telling this was coming but apparently it takes more than 5 days for mail to get from Richmond to Orange County (2 hours down the road). So I have to explain what's going on before the arraignment; luckily I got there 40 minutes early.

Friday: I go into the office and spend the whole doggone day writing a petition for appeal (part of which is here)

Not the most exciting week but they all can't be fun-filled adventures.

Commonwealth v. HicksYet again, the Supreme Court of Virginia has refused to follow the unconstitutional vagueness test laid out as precedent in Chicago v. Morales, which considers the question of whether a statute violates due process through vagueness although the person questioning the statute is not effected by it in an unconstitutional manner. The Court holds fast to its basically undefendable position that a Defendant must prove that the vagueness of a statute as applied to the Defendant is unconstitutional. As far as standards go it's clear, logical, and completely at odds with the standard set forth by the U.S. Supreme Court in Morales.

CitationsThe VaSCt strives mightily to support its position, harkening back to pre-Morales U.S. SCt decisions from 20 and 30 years back and then citing a ton of inferior court decisions. Generally, this is a sign that the persuader has difficulty finding actual proof of his point; if there is a pertinent opinion squarely on point which is post-contradictory precedent one only needs to make that cite to prove his point. The more cites, the less credible the counter-precedent argument.

Citing a Non-Precedent Section of MoralesThen the Court goes to Section IV of Morales to set up a strawman to knock down ("For it is clear that . . ."). The only problem is that Section IV is explicitly not the opinion of the U.S. SCt:

Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which Souter and Ginsburg, JJ., joined.

The six Justice majority in Section V of Morales sets out the entire test for vagueness: (1) Is a substantial amount of innocent conduct reached, and if so (2) does it "necessarily entrust[] lawmaking to the moment-to-moment judgment of the policeman on his beat?" Six Justices apply this test with no exception if the statute can be constitutionally applied to the Defendant.

Claiming the Cases are Different

Morales

City ordinance forbids gang membersloitering in a public place with others.

Officers can order any group with suspected gang members to disperse.

Police arrest those who refuse to leave.

Police actually set out policy to narrow the scope of citizens they may approach.

This Case

The City, a State actor, manipulates thesystem, declaring a part of the City"private" and deeding this public Cityproperty to another State actor.

The second State actor then increasespolice power giving them carte blanche to ban at will people from the streetsand sidewalks if they cannot proveresidence, employment, or demonstratea legitimate business or social purpose for being on those streets or sidewalks.

Police arrest those who refuse to leaveor return at any time after being banned.

No evidence of any police policynarrowing the scope of citizens who maypotentially be approached.

The Court tries to say that the difference between the two is that Morales is a criminal ordinance while in Richmond it's only a policy and the crime is in the trespassing, which is not a vague statute.

[U]nlike the ordinance in Morales, the Housing Authority's trespass policy is not a penal ordinance. The Housing Authority's policy is intended to regulate the behavior of people who appear on private property owned by the
Housing Authority

Of course, one of the strongest arguments in favor of Morales mirrored this argument: the ordinance is not penal in nature until the person does not disperse. In Morales the problem wasn't in the arresting of a person refusing to obey a putatively valid order to leave an area; the constitutional problem is in the approach and banning of a person from an area without any evidence of illegal behavior. In the Richmond case the problem really isn't in the trespass charge; the constitutional problem is in the approach and banning of a person from an area without any evidence of illegal behavior.

De Jure v. De FactoThe last peg which the Court has any real chance of hanging its hat on is the public/private distinction. Morales was about streets which were public under the law. In the Richmond case a carefully constructed fiction has been set in place, making the roads and sidewalks technically private. They are still run by a State actor and presumptively, any necessary funds - beyond rent paid - which will be needed to maintain these roads and sidewalks will come from the State. It is a paper thin fabrication meant to give police more powers than they have constitutionally. It shouldn't stand but it is the strongest argument.

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As always, I am shooting from the hip here. Do not consider this competent legal advice. While I think the general arguments are on track, much, much more research would have to go into this before I would feel comfortable submitting it to any court.

16 May 2004

The Defendant was convicted of 16 felonies and, several years later, he registers to vote in Virginia. He checks a box which states he has never been convicted of a felony (one cannot vote in Virginia with a felony conviction). Clearly there is both a lie and an intention to lie. At no point was evidence introduced showing that the registration document informs him of the penalty for doing this. Argument boils down to whether this technicality voids a conviction under the statute:

§ 24.2-1016. False statements; penalties.

Any willfully false material statement or entry made by any person in any statement, form, or report required by this title shall constitute the crime of election fraud and be punishable as a Class 5 felony. Any preprinted statement, form, or report shall include a statement of such unlawful conduct and the penalty provided in this section.

The second sentence would seem to clearly make the conviction untenable. If the Court follows the standard and most widely followed statutory construction tool of reading the statute as a whole it must overrule the conviction. If the Court follows perhaps the oldest criminal law statutory construction rule, the rule of lenity (in Va : if there is any ambiguity the statute must be construed strictly against the Commonwealth), it will have to overturn the conviction. The Court usually gets around this rule by claiming to find Legislative intent; however, I have never seen any sort of Legislative history quoted or even cited when they do so. In this case Legislative intent would seem not to offer a safe port because the inclusion of the second sentence shows a clear intent on the part of the Legislature that a citizen must be specifically informed of the crime and its potential punishments before he can commit it and be held to account for his actions.

Faced with the conundrum of an obviously guilty Defendant and a statute which does not support the conviction, the Court chooses another path. It changes § 24.2-1016 from a single statute into two statutes and renders the second statute/sentence meaningless. Because the Legislature did not state specifically that the second sentence of the same paragraph, of the same statute, all under the title "False statements; penalties" was meant to have anything to do with convicting someone of false statements it therefore does not. As well, that "shall" language in the second sentence is merely directory and not mandatory; in other words, it is a right without a remedy (RWR). RWR's are not rare matters in Virginia's criminal law; RWR situations often occur when police violate the laws in order to get evidence or an arrest but do not go so far that federal constitutional protections are triggered. Under this interpretation, the fact that the Legislature did not provide a remedy means this section of the law can never be enforced. Curiously, the fact that the Legislature does not give a remedy if the prosecution does not prove an element found in the first sentence statute does not give the Court pause. Of course, no one has to state that the remedy in that case would be dismissal. However, it is assumed - just as a reading of the entire section as one statute would probably lead to the same assumption rising from the element of proof in the second sentence. HC,BL

15 May 2004

Okay, so a buddy of mine shamed me into setting up an actual business website for my office (he got his up here). So I've gotten the front page done and it works when viewed by Opera, Netscape, or Mozilla. When I look at it with Explorer there is a big white block around the picture of the guy in front of the bookcase.

This is a section from a petition for appeal to the Virginia Court of Appeals. Understand that if you ask for a jury trial in Virginia and the jury finds you guilty the jury sentences you. It is my experience that juries will sentence significantly harder than a judge; this is at least partly true because judges have sentencing guidelines. Another factor is the fact that there are many crimes which have a mandatory sentence. Sentencing guidelines almost always call for less than the mandatory time and therefore a judge will suspend that part of the sentence he is required to impose which is greater than the recommendation. Jurors cannot suspend any part of a mandatory sentence. Technically judges can reduce a sentence imposed by a jury but I have never had a judge do so.

In this case a kid was sentenced to 3 1/2 years for shoplifting a $5 t-shirt. Due to his prior record had he been convicted by a judge it is doubtful he would have gotten more than a year.

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“The right of an accused to a trial by a jury is a constitutional right guaranteed under both the United States Constitution and the Virginia Constitution. See U.S. Const. amend. VI; Va. Const. art. I, § 8. ‘Thus, the right to plead not guilty and have one's guilt or innocence and punishment determined by the jury is not only recognized in the law but given great deference.’ Mason v. Commonwealth, 14 Va. App. 609, 613, 419 S.E.2d 856, 859 (1992).” However, sentencing by a jury is a statutory creation, not a constitutional right. See Ballard v. Commonwealth, 228 Va 213, 217 (1984) & Mason, 14 Va. App. at 613; but see Ring v. Arizona 536 U.S. 584 (2002)(jury required for capital murder sentence).

When a judge sentences he is guided by Virginia’s sentencing guidelines. While a person convicted is denied the right to appeal an unreasonable upward departure from these guidelines, the judge must note an explanation for any deviance from the recommended range. Va Code § 19.2-298.01. The General Assembly brought the sentencing guidelines into being in order “to ensure the imposition of appropriate and just criminal penalties, and to make the most efficient use of correctional resources.” Judges are to use the “sentencing guidelines to achieve the goals of certainty, consistency, and adequacy of punishment.” Va Code § 17.1-801. However, this appropriate, just, certain, and consistent sentencing is not striven for in a jury trial. In fact, jurors are specifically forbidden the use of sentencing guidelines: “In cases tried by a jury, the jury shall not be presented any information regarding sentencing guidelines.” Va Code § 19.2-298.01.

Theoretically, a trial judge has the ability to suspend part of a sentence set out by a jury. Va. Code sec. 19.2-303. However, this ability is exercised entirely at the whim of the judge. It is subject to the unregulated decisions of each and every particular judge in the Commonwealth. Judges may have a wide variety of policies based upon factors ranging from personal philosophy to the desire to discourage jury trials in an overloaded docket. As well, when trial judges look to superior courts for guidance they will find that the Virginia judicial system definitely has a culture of deference toward jury decisions. The Courts Appellate of Virginia clearly set out this policy in case after case, usually in the context of decisions of guilt or innocence, see i.e. Commonwealth v. Hudson, 265 Va. 505 (2003) (overturning the Court of Appeals for not giving proper deference to the province of the jury), or in the award of pecuniary penalties, see i.e. WJLA-TV v. Levin, 264 Va. 140 (2002) (pecuniary penalty set by a jury must be grossly excessive or inadequate before it can be set aside). However, the policy of deference is inappropriate when a jury sets a punishment after having purposefully and specifically been denied guidance as to a normal sentencing range.

The sentencing structure laid out in Virginia’s statutory scheme requires a Defendant to place himself in jeopardy of enhanced punishment should he desire to exercise his right to a jury. This jeopardy is a direct infringement upon and serious impediment to the exercise of the right to a jury, one of the most important rights and defenses of the citizenry. Therefore, this sentencing structure is unconstitutional under both the Virginia and Federal constitutions.

The appellant therefore asks that this case be remanded to the trial court with instructions that either (1) the judge resentence appropriately or (2) that a jury be impaneled, given the same evidence available at the initial trial along with sentencing guidelines in order to aid it in its deliberations.

Admittedly, 90% of my clients could care less about their citizenry rights. They are usually focused on the prospect of going to prison and those few who see the longer picture usually are more concerned about the fact that they will never be able to have a firearm. Still there are those few who really want their rights back and Governor Warner is doing his best to accommodate them (at least the non-violent ones).

Virginia is one of only 14 states that do not automatically restore the civil rights - to vote, serve on juries, hold public office - of felons once they have served their time.

And Virginia is one of only seven states that require every felon seeking a restoration of rights to get the governor's personal OK.

Apparently there was a bill in the last term which would have led to automatic restoration of rights for some felons but it didn't make it out of the Legislature. Can't say I'm surprised by that.

A.S. writes to point out that today's Jur-E has a section on Gov. Warner's actions.

Now, I must admit that this just doesn't sit well with me. DC may not have meant it this way but that reads to me as stating "The courts still have jurisdiction but they're just forbidden by Rule to exercise it. However, you may still exercise it under these certain circumstances." Saying that this is only a Rule which does not set a jurisdictional limit seems to me a distinction without a difference.

In all fairness, I must point out that DC said in his e-mail that the Rule may be subject to a constitutional challenge. Personally, I was certain of this. If this happened in Virginia you could make an extremely strong case for unconstitutionality.

The judicial power of the Commonwealth shall be vested in a Supreme Court and in such other courts of original or appellate jurisdiction subordinate to the Supreme Court as the General Assembly may from time to time establish. . . [T]he General Assembly shall have the power to determine the original and appellate jurisdiction of the courts of the Commonwealth. Article IV sec 1.

The Supreme Court shall have the authority to make rules governing the course of appeals and the practice and procedures to be used in the courts of the Commonwealth, but such rules shall not be in conflict with the general law as the same shall, from time to time, be established by the General Assembly. Article IV sec. 5.

As I read those provisions of the Virginia constitution, I am pretty sure that a Rule denying the trial courts jurisdiction which the Legislature has allowed them would not be allowed.

IMHO, that statute makes the new Rule lawful and thus, under Maryland's scheme, constitutional.

CAVEAT: I am not licensed to practice law in Maryland and no indepth research has gone on here. I have not looked at any case law. I have not looked to see what the jurisdiction of Circuit Courts in Maryland were prior to 1964 (or last week for that matter). Don't anyone out there mistake this for a competent legal opinion.

You'll recall the case which I have had for a while now involving a search which I argued was unconstitutional. Here's the brief for the Circuit Court, and here's my reply brief to the prosecution's petition for appeal, and finally here's the Court of Appeal's answer:

VIRGINIA:
In the Court of Appeals of Virginia on Wednesday the nth day of Month, 2004.

Commonwealth of Virginia,
Appellant,
against

JoAnne Smith,
Appellee.

From the Circuit Court of Somewhere County
Before Judges Brown, Black and Senior Judge Green

This petition for appeal is denied for the following reasons:

1. On appeal, the Commonwealth contends the trial court erred in granting the motion to suppress the evidence found on appellant's person. The Commonwealth argues the drug dog's alert upon appellee, although misunderstood by the police officer, provided the police with probable cause to search appellee. The Commonwealth did not advance this argument in the trial court, however. At the suppression hearing, and in its brief opposing the motion to suppress, the Commonwealth contended the drug dog's alert on the passenger, coupled with the passenger's admission he had been around someone who was smoking marijuana that day, justified the search of appellee's vehicle, and the discovery of contraband in the vehicle provided probable cause to search appellee.

"The Court of Appeals will not consider an argument on appeal which was not presented to the trial court." Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18. See Floyd v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978) (appellate court will not consider an argument on appeal that is different from the specific argument presented to the trial court, even if it relates to the same general issue). Accordingly, Rule 5 A: 18 bars our consideration of this question on appeal. Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.

2. Code § 19.2-398(A)(2), which is in derogation of the general prohibition against appeals by the Commonwealth and must be strictly followed, requires the Commonwealth to certify "that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding." The Commonwealth has failed to make that certification.

It is ordered that the trial court allow counsel for the appellee a fee of $400 for services rendered the appellee on this appeal, in addition to counsel's costs and necessary direct out-of-pocket expenses.

This report, from the Federalist Society, tries to estimate the number of federal crimes currently on the books and describe what is happening to federal mens rea.

Selected highlights:

Conservatively speaking, the U.S. Code contains at least 3,500 offenses which carry criminal penalties. More realistically, the number exceeds 4,000. (p. 11) [T]he count of 600+ [newly legislated] crimes in the seven-year period from 1997 demonstrates the estimate of over 4,000 crimes today. . . [O]ne fairly glaring trend did emerge which deserves mention. During the seven-year period of this Report from 1997, 24 of the 67 sections and subsections were created in the environmental area. That is over 35% of the total number of sections and subsections created by Congress during that period. (p. 15)

Federal prosecutors have certain favorites, notably mail and wire fraud statutes, which they use even when other statutes might be more applicable. That, of course, does not mean that the addition of little-used crimes is unimportant. The federal government is supposedly a government of limited powers and, therefore, limited jurisdiction. Every new crime expands the jurisdiction of federal law enforcement and federal courts. Regardless of whether a statute is used to indict, it is available to establish the legal basis upon which to show probable cause that a crime has been committed and, therefore, to authorize a search and seizure. The availability of more crimes also affords the prosecutor more discretion and, therefore, greater leverage against defendants. Increasing the number and variety of charges tends to dissuade defendants from fighting the charges, because (s)he usually can be “clipped” for something.

Moreover, the expansion of federal criminal law continues to occur even without new legislation. Federal prosecutors regularly stretch their theories of existing statutes. Thus, in the Martha Stewart case the prosecutors developed a “novel,” indeed ludicrous, theory that Ms. Stewart committed fraud by proclaiming her innocence of the charges. Ultimately, the trial judge rightly threw out the fraud charge. Often, though, federal courts cooperate with prosecutors and happily make new law retroactively. What (then) Professor and (later federal Judge) John Noonan wrote in 1984 about bribery and public corruption continues to be generally true, namely that federal prosecutors and federal judges have been effectively creating a common law of crimes through expansive interpretations. (p. 16-17).

Men Rea

Regardless of what a statute says, 1) a crime that appears not to have a mens rea may be interpreted by courts to have one; 2) a crime that appears to have a mens rea may have the mens rea diluted as applied in prosecution and as interpreted by courts. The problem of mens rea in federal criminal law is well summarized by a leading casebook, as follows:

Federal statutes, for example, provide for more than 100 types of mens rea. Even those terms most frequently used in federal legislation–“knowing” and “willful”– do not have one invariable meaning. Particularly with respect to judicial interpretation of the term “willful,” the precise requirements of these terms depend to some extent on the statutory context in which they are employed. Another layer of difficulty is attributable to the fact that Congress may impose one mens rea requirement upon certain elements of the offense and a different level of mens rea, or no mens rea at all, with respect to other elements. (p. 18)

Whereas the Court in [Schick v. United States, 195 U.S. 65 (1904)], spoke of both the nature of the offense and the length of the punishment, the trend for some time in criminal law has been to consider only the length of the possible punishment. Unfortunately, potential sentences continue to rise without much, if any, consideration of moral culpability. Without that distinction, physical and financial harms – which are the focus of tort law – are too easily labeled “crimes.” (p. 22)

As the law currently stands Maryland trial courts have the ability to reduce sentences at any time post conviction. The Legislature has refused to reduce this for the last three years. So now "[t]he Court of Appeals ruled 6-1 Monday to bar judges from reducing any sentence more than five years after it is imposed."

Hmmm . . . Not being a Maryland lawyer, I don't know who is vested with the power to set jurisdiction in Maryland. Is it not the Legislature?

12 May 2004

Monday: In the morning I go to a court wherein my client's charge is raised from unlawful wounding to malicious wounding. Client was originally going to testify against codefendant but that didn't happen so his deal for a lesser charge went away. Client's trial is put off and his Codefendant is having a jury trial for malicious wounding on this day. The trial is over a fight. Client had done something first but the most egregious event of the fight was when Codefendant jumped on Victim and whaled on him with a beer bottle.

Codefendant's attorney tries to talk me into going to trial with him that day but I have little confidence in Codefendant's claim that he was justified in hitting the Victim over the head - and cutting him - with a beer bottle because victim had grabbed onto him first and would not let go. So after we put off my client's case I leave to go file some paperwork at another court and take care of some jail visits.

Tuesday: In the morning I call the court to see how Codefendant's jury trial went. A couple minutes later I am in absolute shock. The jury found Codefendant only guilty of Assault and Battery and sentenced him to only 30 days in jail (compared to the 5 years mandatory the jury would have had to sentence for malicious wounding). A sound decision the day before not to go to trial now appears - with the help of 20/20 hindsight - to be a disastrous decision. Calamitous. While I am a great believer in juries, the odds of getting that same result with a totally different jury, even though my client is far less culpable, are small. My client may be doomed to an unjust result because I made a sound tactical decision. How wonderful.

I, once again, travel 2 hours to visit my federal client in the case where nothing has happened because everything keeps getting put off because the family is hiring another attorney. This meeting lasts longer but the result is the same: I leave without anything being accomplished and drive the two hours back.

Wednesday: My only court case for this day is a sentencing hearing on a pretty standard possession of cocaine charge. It's a residue case and, although the sentencing guidelines recommend 3-6 months, my client has been accepted into a strict drug treatment program which the court oversees; I am hopeful for probation and mandatory program attendance. The only problem is that when I walk into the courtroom there is a class of High-Schoolers sitting there watching the proceedings. This is never good news for a Defendant. I get up and make my pitch about how it would be better to send Client to the program and put him on probation rather than warehouse him at the expense of the taxpayers and the detriment of his multiple children and his wife. Then the prosecutor, who often might not even choose to speak on such run-of-the-mill case, stands up and makes an impassioned plea to throw my client in jail to punish him for the evils he has inflicted upon society. The judge looks down and starts into a stern lecture of my client about how he hears people pleading the effects of jail on their families but how nobody seems to think about that when they commit the crime. Then he sentences my client to probation and orders him into the program. Because my client is the last one for the judge that morning, the judge, the prosecutor and about 4 defense attorneys stay and answer the kids' questions. Most are pretty standard but at one point, in answering a question, I opine that the Virginia system is wrong because it is biased against people exercising their right to a jury. The defense attorney standing to my left actually physically jumps away from me when I say this (while looking at the judge).

Thursday: In the morning I have another sentencing hearing. This time it's a guy convicted of possession with intent to distribute less than 5 pounds of marijuana and the recommended sentence is probation; he has also been accepted into the local court-overseen drug treatment program. The only problem is that my client has missed a lot of meetings he was supposed to have with pretrial services for drug screenings. Client gets probation and the program but the judge gives him 10 days to serve over weekends for contempt because of the pretrial problems. As we are standing out in the hall afterwards, when a deputy and the court clerk walk up Client starts telling them how great a guy I am: "I came to court with about 8 different reasons why I missed pretrial meetings but Mr. Lammers told me that he wasn't going to say all that to the judge because all that could do was make him angry and I wouldn't get my program. And he was right! You know, my paid attorneys in NY would come speak to me five minutes before trial and then go out and talk to the judge like they forgot everything I told them. Mr. Lammers listened to me and figured out the best thing to do. And he's only a court appointed attorney!" Right up to that last statement my head was swelling a little bit but when he said the last line with a confused look on his face Client managed to bring me back to Earth.

The afternoon is a little busy. One of my clients pleads guilty to a felony DUI and has her driving suspended charge dropped. Another of my clients waives his preliminary hearing in order to get a charge dropped and another reduced to a lesser felony. A third client comes to court his 5th time on a bad check charge and, after the prosecutor refuses to agree to any further delays, the money to pay restitution magically appears. He gives it to me and the prosecutor amends his charge to a misdemeanor with all his jail time suspended. After court I drive down to the store to pay off my client's restitution. The store won't take it because the lady at customer service doesn't know how and she cannot get a manager. So I leave and mail it to them later.

While I'm driving around the federal prosecutor calls and tells me that while my client has me in limbo the AUSA went and got a superseding indictment which increases Client's jeopardy. I also get a call from David Boone (in the Richmond pond, I'm probably a bluegill while Mr. Boone is a whale) who is calling to tell me that he has not been hired by the federal client. I'm a little impressed he returned my call personally as I had expected I'd probably get a call from his secretary. He even extends the courtesy of offering to let me use his office when I'm in Richmond for federal court. Gotta admit that this caught me a little off guard and I think I said something brilliant like, "Really? Well thanks a lot." Fortunately, at this point I pulled into the store's parking lot to go offer the check and had to get off the phone before I was able to further dazzle him with even more of my conversational repertoire.

Friday: Today I am scheduled to go to a Continuing Legal Education seminar in Northern Virginia. About 5 a.m. I get up, walk the dogs, shower, and throw on some comfortable clothes. A little after 6 a.m. I stumble out of my apartment, get in the car and start driving. The first couple hours of the drive are spent with my foot jamming the pedal to the floor in a barely successful attempt to keep from getting run over by semis and SUV's. Then traffic stops. I spend the next 40 minutes traveling somewhere between 5mph and 0mph. I finally reach a turnoff which goes to a road on my path and get off the interstate - 45 minutes later I have traveled the back roads to get where I need to be. I walk in 30 minutes late and, of course, there are absolutely no seats in the back three rows. I have to find a seat on the row second from the front while a judge is speaking (wonderful). It was an interesting CLE although it was a little basic and more oriented toward the civil side (nobody really spoke from a criminal law perspective except the judges). By far, the more interesting and useful parts were those done by the judges. Heck, at one point Judge Humphreys even recommended How Appealing to the assembled lawyers.

As the CLE ends, I ask the lady next to me if there's any way to avoid the traffic jam on my way out of the DC area. She opines that I would be better off going across the street and watching a movie and then travel South after rush hour. So I go over and watch Laws of Attraction. When the movie ends at 7 p.m. the advice seems to have worked; 495 is moving at a brisk pace. As I drive along two things stick out. First, DC radio channels don't often play music - all they have are DJ's who prattle on and on and on. Second, it is a bit disconcerting to be driving along in the right hand lane and see signs which say "Hazmat Trucks Keep Right." Then I get to I-95 and the traffic is jammed from the off-ramp to about half way to Fredericksburg. Aaaarrgggg!!!!! But eventually I get home - at around 10:30 p.m.

So, you've been in a week long trial involving a couple dozen charges. You and the judge haven't seen eye to eye on anything. He's overruled all of your well thought out and impeccably reasoned motions and he laughed at your jury instructions. You have so many issues preserved for appeal that you can't count them all (you ran out of fingers). Exactly how many issues should you actually appeal?

Well, the book they handed us at Friday's CLE gives some guidance as to what appellate judge will think of your appeal based upon the number of issues you appeal:

Number of Issues Judge's Reaction

1 to 3 Presumably arguable points.
This lawyer is primo.

4 Probably arguable points.
This lawyer is primo minus.

5 Perhaps arguable points.
This lawyer is not primo.

6 Probably no arguable points.
This lawyer has not made a
favorable initial impression.

7 Presumptively, no arguable points.
This lawyer is at an extreme
disadvantage, with an uphill
battle all the way.

8+ Strong presumption that no point
is worthwhile. To the lawyer:
Go home. Do not pass "Go."

Some of the "abuses" recorded could be for valid reasons. There are valid reasons for strip searches and devices meant to keep prisoners from spitting on guards. And making men wear pink underwear may be weird but it's not exactly taking a guy in the back room and pulling out the rubber hoses; in fact, it might be the only kind of punishment to which John "Mad Dog" Smith responds. This assumes the type of prisoner who is serving six life sentences and keeps a scorecard of the number of fights he has been in with the guards (as you might be able to tell, I am not against minor psychological punishments).

Nevertheless, as sure as I know the Sun will rise tomorrow I know that there will be some guard(s) in a prison who will get on a power trip, get angry, get paid, &cetera and abuse prisoners. It is almost impossible to stop a guard or two or even a group who work a shift together from crossing the line. However, this sort of thing is particularly disturbing:

[In Texas] prisons were under a federal consent decree . . . because of crowding and violence by guards against inmates. Judge William Wayne Justice of Federal District Court imposed the decree after finding that guards were allowing inmate gang leaders to buy and sell other inmates as slaves for sex.

That just sounds far too sytematic and that is unforgiveable.

I must say that as I read this article I wonder if this is not a number of widely seperated incidents strung together to create a greater sense of disaster than appropriate. It selects incidents from Texas, Virginia, Utah, and Arizona; it needs to reach down to jail policies while making a point about prisons; and it doesn't address the prevalance of these events, even in the places it cites. For instance, how often do Wallens Ridge inmates wear hoods? Is the abuse described above something which was evidenced in only one prison or was it something that was seen as systematic across the entire State? The article is just too shallow.

On a personal note, I also did not appreciate the political tag line in the Texas quote. You'll note that the NY Times didn't say, "In Democratic Governor Mark Warner's Virginia, the Wallens Ridge maximum security prison . . .

08 May 2004

Some of the "abuses" recorded could be for valid reasons. There are valid reasons for strip searches and devices meant to keep prisoners from spitting on guards. And making men wear pink underwear may be weird but it's not exactly taking a guy in the back room and pulling out the rubber hoses; in fact, it might be the only kind of punishment to which John "Mad Dog" Smith responds. This assumes the type of prisoner who is serving six life sentences and keeps a scorecard of the number of fights he has been in with the guards (as you might be able to tell, I am not against minor psychological punishments).

Nevertheless, as sure as I know the Sun will rise tomorrow I know that there will be some guard(s) in a prison who will get on a power trip, get angry, get paid, &cetera and abuse prisoners. It is almost impossible to stop a guard or two or even a group who work a shift together from crossing the line. However, this sort of thing is particularly disturbing:

[In Texas] prisons were under a federal consent decree . . . because of crowding and violence by guards against inmates. Judge William Wayne Justice of Federal District Court imposed the decree after finding that guards were allowing inmate gang leaders to buy and sell other inmates as slaves for sex.

That just sounds far too sytematic and that is unforgiveable.

I must say that as I read this article I wonder if this is not a number of widely seperated incidents strung together to create a greater sense of disaster than appropriate. It selects incidents from Texas, Virginia, Utah, and Arizona; it needs to reach down to jail policies while making a point about prisons; and it doesn't address the prevalance of these events, even in the places it cites. For instance, how often do Wallens Ridge inmates wear hoods? Is the abuse described above something which was evidenced in only one prison or was it something that was seen as systematic across the entire State? The article is just too shallow.

On a personal note, I also did not appreciate the political tag line in the Texas quote. You'll note that the NY Times didn't say, "In Democratic Governor Mark Warner's Virginia, the Wallens Ridge maximum security prison . . .

Ambush in Bartlette

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.